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Appeal Waiver in Plea Agreement Invalid Without Consideration from Government

In United States v. Lutchman, the Second Circuit held a waiver of appeal contained in a plea agreement was invalid because it was not supported by consideration from the government. Mr. Lutchman pled guilty to one count of conspiracy to provide material support to a foreign terrorist organization pursuant to a plea agreement that calculated an advisory guidelines range at the statutory maximum and contained an appeal waiver for any sentence at or below the statutory maximum. Yet he “received no benefit from his plea beyond what he would have gotten by pleading guilty without an agreement.” The government’s agreement not to oppose the two-level reduction under the guidelines for acceptance of responsibility and to move for the one-level reduction under U.S.S.G. 3E1.1(b) for Lutchman’s timely notification of his intention to plead guilty did not constitute consideration for the appeal waiver because the combined three-level reduction was available to Lutchman “even in the absence of an agreement to waive his right to appeal. See U.S.S.G. 3E1.1 cmt 6 (‘The government should not withhold [a 3E1l1(b) motion] based on . . . whether the defendant agrees to waive his or her right to appeal.’).” The plea agreement “provided Lutchman with no increment of ‘certainty as to the extent of his liability and punishment,'” “no ‘chance at a reduced sentence,'” and “nothing that affected the likelihood he would receive a sentence below the statutory maximum.” In light of the lack of consideration, the Second Circuit refused to enforce the appeal waiver in the plea agreement.

Unfortunately, after reaching the merits of the appeal, the Circuit affirmed Mr. Lutchman’s sentence. He challenged his sentence on both procedural and substantive reasonableness grounds. As to the procedural challenge, the Circuit held that the District Court did not err in refusing to give a three-level reduction in the offense level under 2X1.1(b)(2). The District Court had made very clear that it thought the maximum sentence was appropriate and even with the three-level reduction, the advisory guidelines range still would have exceeded the statutory maximum. Even if it would have, the District Court did not err in refusing to grant the reduction because Mr. Lutchman’s “conduct advanced the substantive offense – a deadly attack on Merchant’s Grill in the name of ISIL – to the verge of fruition” and the “surveillance and infiltration by the police did not affect [Lutchman’s] free will, and did not make the crime a police exercise.”

In terms of substantive unreasonableness, the Circuit held that the sentence was located within the range of permissible decisions and that the District Court considered Mr. Lutchman’s arguments regarding his mental health and had a reasoned basis for its decision to impose the statutory maximum.